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Free Speech – A Right Everywhere but College Campuses?

Free speech is one of America’s most treasured rights recognized by the United States Constitution. Issues surrounding free speech have always been somewhere in the news, but recently free speech rights on college campuses have gotten a seat on the national stage. Although events like Milo Yiannopoulos and Ann Coulter at Berkley or Ben Shapiro at UW or Charles Murray at Middlebury are important, they are not at the center of the fight to protect free speech – but rather a symptom to college policies.

Okay First, What is the deal with Yiannopoulous, Coulter and Shapiro?

In case you haven’t been paying attention recently, tensions surrounding free speech and speakers on college campuses have been heating up. In the last year, there have been several notable events surrounding “dis-invitations” to speak at colleges. This is where invitations given to speakers by the college or college organization for events ranging from general campus activities to graduation commencements are withdrawn (usually) due to controversy relating to free speech issues.

Milo Yiannopoulos, for example, planned to appear at Berkley in February of 2017, but the event was canceled two hours before it was scheduled to begin when violent protests broke out; causing $100,000 worth of damage to the campus. In a statement, UC Berkeley said: “We condemn in the strongest possible terms the violence and unlawful behavior that was on display and deeply regret that those tactics will now overshadow the efforts to engage in legitimate and lawful protest against the performer’s presence and perspectives.” Following this incident, Ann Coulter was supposed to speak at Berkley but had her event canceled as well. After canceling her original event, Berkley stated she could speak on a different date and time when there would be fewer students on campus and a lower likelihood of violent outbreaks. Ben Shapiro, who was met with protests when he spoke at the University of Wisconsin about his case against safe spaces and other movements on college campuses – “Dismantling Safe Spaces: Facts Don’t Care About Your Feelings”, is set to speak at Berkley this fall.

Some colleges, like CU Boulder, went ahead with speakers met with extreme protest from students groups and did not give out “dis-invitations”. Yiannopoulous gave his talk “Why Ugly People Hate Me” at Boulder, prompting protests resulting in three arrests during the event. When political scientist Charles Murray spoke in February at Middlebury College in Vermont, protesters got so rowdy a professor accompanying Murray was injured.

Evergreen State College had issues this year when student protesters who were upset about racism on campus boiled over after a white professor objected to a request by a school official that white people avoid campus on a day of symbolic protest. Some student protesters urged the administration to fire that teacher and two other college officials along with implement a series of changes to combat racism at the school.

Free speech is not a one party or political idealist issue; it is a right people of all political affiliations need to work to protect. Following the dis-invitation of Ann Coulter, Senator Bernie Sanders of Vermont scolded those who tried to block the speech, “What are you afraid of — her ideas?” So how do college’s policies fit into the free speech argument and who tackles these issues? Let’s look at one specific defender of college free speech rights, theFIRE.org, to see what we can learn.

FIRE – An Organization Founded to Protect Free Speech (and other rights) on College Campuses

I recently had the pleasure of interviewing someone from FIRE (Foundation for Individual Rights in Education). FIRE is a nonpartisan organization with the overall initiative to protect free speech and due process. They aim to help students and professors at the center of censorship or free speech issues. If people are caught up in an incident, FIRE has two different ways to help. First, FIRE has an individual rights program, where they write a letter to the school clearly stating the situation, clarify the applicable the law, and explain the school’s obligation. Alternately FIRE has litigation team, which helps students and professors assert their rights in the courts as needed. Currently, FIRE is helping a tenured professor, Teresa Buchanan, with her federal civil rights lawsuit against the president of Louisiana State University (LSU) and other top administrators for violating her free speech and due process rights by firing her in 2015.

FIRE takes a collaborative approach to fighting for these rights by advocating for reform of speech codes on campus (done with the help of their policy reform team), working with students and reaching out to administrators. FIRE is also a part of legislative initiatives at state and federal levels and works with legislators to better protect student rights. This year, it’s been exciting for them to have so many legislators across the country interested in protecting an essential liberty like freedom speech – protecting the very vitality of our democracy.

FIRE knows, like the rest of us, there have been a lot of high profile incidents on college campuses – but those aren’t the only battles they’re fighting. Although these high profile events in headlines get the general public and legislators interested in the issue, FIRE does so much more work than just dealing with “dis-invitations”. One of the main initiatives at FIRE is giving spotlight ratings – rating colleges’ policies as green light (good) or ones which restrict students speech as red light or yellow light. One policy which is especially concerning to them is “free speech zones;” designating small, out of the way areas as the only places students can express their thoughts and opinions without pre-approval.

FIRE also tends to give harassment policies red light or yellow light ratings because they are overly broad and tend to prohibit constitutionally protected expression. The actual, legal definition of student-on-student “harassment” given by the Supreme Court is behavior “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” An example of this is if a student of color is in a classroom and a person or group constantly or continually uses racial slurs – “pervasive and objectively offensive” speech that would offend a reasonable person. If the above test is met and the targeted student felt as though they could no longer attend class, the college could take action against the offending student(s) because the speech is no longer protected and is viewed instead as discriminatory conduct.

Another interesting aspect to these stoplight ratings is private vs public schools. The constitution only limits the power of government, thus public schools are bound by the constitution because they are state owned, but private schools are not governmental and therefore not bound by the constitution in the same way. Private schools often make “promises” and are rated based off of their “promises”. To assign spotlight ratings for public schools, FIRE usually uses the student code of conduct, residence hall regulations, student handbook and IT policies as good sources of information for how schools aim regulate student activity. Some private schools make it clear in their promises they have other values they place higher than freedom of expression (for example a religious school) which FIRE assigns “warning school” status and does not give them a spotlight rating. Of the 345 public schools and the 104 private schools they rated last year, 33.9% of public schools and 58.7% of private schools had a red light ratings.

Trends regarding rights on college campuses, both good and bad, identified by FIRE:

An uptick in dis-invitations – student group or college invites person on campus to speak and they’re dis-invited. The majority for political reasons

An increase in violence surrounding outside speakers on campus

Fewer and fewer colleges maintaining free speech zones, it was 1 in 6 now it’s 1 in 10

Green light rated schools have substantially increased. This year 39.6 % had red light policies compared to 49.3% last year

FIRE is a nonpartisan organization and takes on non-political speech along with political speech issues. They take cases from all over the political spectrum; being the organization that helps people who had someone they like dis-invited while at the same time helping people who were participating in peaceful protest for the event. FIRE also has some great resources you should take a look at: Campus Protest FAQs (thorough look and state of the law and how it applies to college campuses) , Spotlight Report 2017 & FIRE Student Network.

The Bills

There are many different bills and legislative movements around the country currently to protect free speech on college campuses.

Prevent administrators from disinviting speakers whom members of the campus community wish to hear from.

Establish a system of disciplinary sanctions for students (informed of these at freshman orientation) and anyone else who interferes with the free-speech rights of others.

Reaffirm the principle that at the official institutional level universities should remain neutral on issues of public controversy to encourage the widest possible range of opinion and dialogue within the university itself.

Authorizes a special committee created by the Board of Regents to issue a yearly report to the public, the regents, the governor, and the legislature on the administrative handling of free-speech issues.

Tennessee passed legilation many have dubbed the nation’s “most comprehensive” campus free speech law (SB723/HB538). The law mandates public colleges and universities in Tennessee adopt free speech policies consistent with the University of Chicago’s 2015 Stone Report. The law also expressly prohibits “free speech zones” and administrators rescinding invitations from students or faculty of speakers with whom they disagree or fear will cause disruption. Finally, this act will forbid any viewpoint-based discrimination in the distribution of funds for student groups and prevent faculty from being punished for what they choose to say in the classroom unless it is “not reasonably germane to the subject matter of the class as broadly construed, and comprises a substantial portion of classroom instruction.”

Finally, Illinois, Colorado and Arizona each have bills that differ from state to state, but they’re all generally based on the same Goldwater Proposal. IL HB2939 requires the governing board of each public university and community college to develop and adopt a policy on free expression, issue an annual report and include a section in their freshman orientation programs describing to students the policies and rules regarding free expression. CO SB62, AZ HB 2615, MO SB93 and VA HB258 all have some form of a Campus Free Expression Acts (CAFE Act) which abolish free-speech zones on public college campuses. AZ HB 2548 adds a misdemeanor penalty for obstructing another person’s right to gain access to and attend a hearing, political event or government meeting along with allowing a student or the state Attorney General to sue if they believe rights were violated.

Wisconsin introduced the Campus Free Speech Act which would establish a special council in charge of disciplinary hearings when a student is accused of preventing someone from speaking or restricting their free expression. A student found guilty of two violations would be suspended for a minimum of one semester and a third violation would result in the student being kicked out of the university. It would require the UW Board of Regents to develop a free expression policy stating the university’s’ “primary function … is the discovery, improvement, transmission and dissemination of knowledge,” and it is not the role of an institution “to shield individuals from speech protected by the First Amendment.” The legislation also wants to create a discipline policy for anyone affiliated with a UW institution (student, teacher or otherwise) who “interferes with the free expression of others.”

AZ SB1384 was passed and then vetoed by the governor of Arizona because he believed “that this bill could create unintended consequences, especially on high school campuses where adult supervision and mentoring is most important.” This bill would have prohibited public schools, including colleges and universities, from restricting or influencing the content of student publications, even if those publications are funded by the institution. LA HB269 would have established sanctions for students who interfere with “the free expression of others”, required colleges to adopt a statement saying they strive for free expression on campuses, wouldn’t shield students from unwelcome or offensive speech and would permit protests and demonstrations, but it was vetoed. Governor John Bel Edwards described the bill as a “solution in search of a problem” but without a Board of Regents’ “committee on free expression” that reports annually on any controversies it’ll be more difficult to decipher that.

Conclusion

Earlier in July, 2017, congress held a hearing focused on free speech on campus. Representative Val Demings, a black Democrat from Florida, stated during the hearing “the issue of free speech on college campuses isn’t a right or left issue. Rather it’s about criminal acts being wrapped in banners of free speech.” A representative of the Anti-Defamation League, Frederick Lawrence, offered up a possible test for discrimination as, “Is the intent to communicate, no matter how hateful, the idea, or to intimidate the victim?” Many people tried to focus on the differences between hate speech being protected and hate crimes not. Amongst others Adam Carolla, currently making a documentary titled “No Safe Spaces”, and Ben Shapiro were invited to speak. Ben Shapiro stated, “Free speech is under assault because of a three step argument made by the advocates and justifiers of violence. The first step is that they say the validity or invalidity of an argument can be judged solely by the ethnic, sexual, racial, or cultural identity of the person making the argument. The second step is that those who argue otherwise are engaging in verbal violence. And the third step is that they conclude physical violence is sometimes justified to stop what they call verbal violence.”

I think the most important designation for this type of speech is in the test offered above, the intent of speech. I do think students need to be exposed to beliefs that differ from their own, but not if the intent of the speech is to intimidate or harm someone. Allowing students to experience and see new aspects of the human condition is one of the main points of college, but respect for humankind needs to be encouraged too.